One of the most fundamental problems with the constitutional case against the health care mandate is a persistent uncertainty about the coherence of the major premise. Jason Mazzone’s recent post, for example, seems to be predicated on the notion that the Constitution is violated whenever Congress does anything unprecedented. If this preposterous premise were accepted, it would follow that all of the actions of the First Congress were unconstitutional.

Attacks on the mandate frequently violate basic rules of logic in this way. Another logical difficulty is presented by the very common conjunction of the following arguments – a conjunction that is perhaps the most common constitutional objection:

1. There must be some limit on Congress' powers.

2. In order to provide such a limit, we must adopt the activity/inactivity distinction: Congress cannot regulate inactivity, such as the decision to go without health insurance.

3. United States v. Lopez (1995), which struck down a federal law banning handguns near schools because it exceeded the commerce power, was rightly decided.

If 3 is true, then 2 cannot be. Lopez did not turn on the activity/inactivity distinction. Possession of handguns near schools is an activity. Yet those who make claim 2 often cite claim 3 as supporting evidence. I have not yet encountered a single person who embraces 2 but denies 3.

The problem is not one of differing interpretations of the Constitution, or of precedent, or of history, or of wise policy. It is rather one of arguments whose premises logically contradict each other. (I’ve noticed this before, with specific reference to Judge Vinson’s opinion invalidating the mandate, here.)

Perhaps the idea that there are rules of logic and that arguments must conform to them is also a left-wing idea one must repudiate in order to show that one is a loyal and reliable conservative.

The problem with your argument, (Or one of them, anyway.) is that it's generally understood that the limit identified in Lopez was blown through with Raich, putting us back in "anything goes" territory.

It's not so much that anything unprecedented is by definition unconstitutional. But, after over 200 years, it can reasonably be argued that, if in 200 years Congress hasn't tried to exercise a power, there's certainly no presumption the power is constitutional.

There would be a contradiction if Lopez had been based on the activity/inactivy distinction. But if one holds that Lopez was rightly decided because possession of a handgun near schools is not an activity within interstate commerce, then the fact that it is an activity is entirely irrelevant.

The only way Raich would get us back to "anything goes" is if Lopez and Morrison were reversed (at least sub silentio). But the economic/non-economic distinction developed in Lopez, and affirmed in Morrison, survived Raich.

Mazzone argued a "precedent" cited actually is not one. I don't see him making the "preposterous premise" that unprecedented congressional actions are unconstitutional. He actually left that question open in a reply he made to a comment I let.

Now, maybe some people accept that "preposterous premise," but his post isn't reliant on it. I think his post is partially wrong, as I argued, but not on that ground.

the "activity" test is irrelevant because the court concluded that it is not within interstate commerce. You need both "an activity" and "within interstate commerce". If possessing handguns near schools is not within interstate commerce, then the "activity" test is unnecessary—it could be an activity (as it is) and still be beyond congressional power.

Conversely, the mandate—as a regulation of inactivity—could be held to be "within interstate commerce" and still fail the "activity" test, hence falling beyong congressional power as well.

If 3 is true, then 2 cannot be. Lopez did not turn on the activity/inactivity distinction. Possession of handguns near schools is an activity. Yet those who make claim 2 often cite claim 3 as supporting evidence. I have not yet encountered a single person who embraces 2 but denies 3.

Lopez in no way contradicts the activity/inactivity proposition. Lopez is cited not as precedent on the activity/inactivity issue itself, but instead as precedent that the court eviscerated CC still provides some limits on Congress' power. Indeed, one of the proponents' arguments is that Congress has never before arrogated the power to regulate inactivity, a concept which is itself a contradiction in terms.

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